For Your Freedom and Ours

Honouring and learning from the 1968 Red Square Demonstration

Fifty years ago today, on August 25, 1968, eight men and women came out on Red Square to protest against the Soviet invasion of Czechoslovakia.

They held up some banners, perhaps the most famous of them (pictured) repurposing the old Polish slogan “For our freedom and yours“, originally used to protest the Tsarist empire; for this protest by Russians, the words became “For your freedom and ours”. It only took the KGB a few minutes to attack the protesters (one of whom had several teeth knocked out), break up their banners, and arrest them. One gave in to pressure to declare that she had been there by accident; the others did not. Five were put on trial and sentenced to the Gulag or to exile. Two ― Natalya Gorbanevskaya, who had recently given birth (and come to the Red Square with a stroller!) and Viktor Fainberg, the one who had had his teeth knocked out ― were instead declared to be mentally ill and interned in psychiatric institutions, avoiding the Soviet authorities the embarrassment of putting them on trial.

I think it is worth commemorating this protest, not just to honour its participants, but also because they have something important to tell us about what it means, and what it can cost, to be free. A number of them spoke to Vladimir Kara-Murza Jr. for a documentary on the dissident movement in the Soviet Union (the discussion of the 1968 Red Square Demonstration is here), and their thoughts are relevant not only to historians, or to those struggling against regimes that are generally recognized as authoritarian, but also to anyone trying to resist a stifling atmosphere of unfreedom that can exist even in the absence of overt repression, and even in the midst of widely professed belief in free expression.

Freedom has two aspects: internal and external. Free individuals are free thinkers; they do not accept received wisdom, prevailing opinions, and common sense as dogma. Free individuals are also free agents; they act consistently with their sense of right and wrong. Meaningful external freedom, freedom of action, is not possible without internal freedom, freedom of thought. But freedom of thought alone is insufficient. One might be able to count oneself as a king of infinite space while bounded in a nutshell, but not, as we know, if one has bad dreams. And one of the points that that Mr Fainberg makes in the documentary is that “bad dreams” are the inevitable consequence of not acting in accordance with one’s understanding of how one ought to act: “the biggest fear” a person can have, he says,

is fear of the past. Because if you’ve betrayed yourself in the past, if you betrayed your own dignity, you will have that worm inside you, which will eat you from inside, in the present and in the future, and you will not be able to escape it.

This is a point I have already made here, quoting from JS Bach’s St John Passion, where Peter laments his own inability to escape “the pain of [his] misdeed”, his betrayal.

To be free, then, is both to think and to act for oneself, and not on the demand of authorities. Just what acting for oneself involves will depend both on the individual and on the circumstances ― sometimes, it means to worship or preach, sometime to speak or write, sometimes to get together with others on the public square and try to shame the government. All these actions, however, are in some sense public, visible, even ostentatious. To repeat, purely internal freedom, though it may be of some value, is in the long run unavailing. On the contrary, to think freely and to fail to act on these thoughts is to set oneself up for bitter shame and remorse. A free thinker will become a free agent, if only to avoid this outcome. As Gorbanevskaya put it in the documentary, the protest, for her, was a way to ensure that she would “have a clean conscience”. This is no doubt somewhat false, or at least uncalled for, modesty. Protesting, on Red Square, against a defining policy of the Soviet government was an act of incredible bravery. But it is not to slight the protesters to say that they feared a guilty conscience more than the KGB and the Gulag. On the contrary.

The Soviet authorities in 1968 knew this. This is why they took no chances. They did not just stop people from acting. They did their best to impose uniformity of thought. They never fully succeeded, of course, but they never stopped trying. They demanded that all Soviet citizens, especially educated ones, devote years to the study of Marxist “classics”; they forbade “hostile” or “subversive” book being published or even read; and they demanded loud, public, professions of commitment to the ideology and policies of “the Communist Party and the Soviet Government”, the louder and more public the more significant ― or suspect ― the target of the demands was. As Orwell understood so well, forcing people to speak in particular ways meant forcing them to think in particular ways too.

Yet paradoxically the authorities’ obsession with ensuring that all Soviet citizens thought alike gave the few who thought differently a power of their own. In Gorbanevskaya’s words,

[a] nation minus even one person is no longer an entire nation. A nation minus me is not an entire nation. A nation minus ten, a hundred, a thousand people is not an entire nation, so they could no longer say there was nationwide approval in the Soviet Union for the invasion of Czechoslovakia.

This is why it was so important for the Soviet system to crush even the relatively few people who opposed it ― and why, in a sense, their small numbers did not matter very much. Not everyone thought alike, therefore not everyone acted alike, therefore others saw that dissent existed, and started thinking and acting freely in their turn.

Free thought is thus a standing danger to any authority that wants all those subject to it to conform to its demands. Latter-day egalitarian moralists understand this as well as the Communists of yesteryear. (And, any egalitarian moralists who might be reading this: don’t tell me that you are right, or that you are redeeming the many sins of white-man-kind; the Communists also thought that they were building heaven on earth. Including when they were invading Czechoslovakia.) Hence their shamings, their online mobs, and their demands for attestations and statements of principles. They desperately want to control people’s very thoughts and beliefs, because they sense that, if people are not made to get on with the programme in their minds, they will, sooner or later, start speaking out against the programme too, call scrutiny upon it, and expose its unexamined assumptions, its logical deficiencies, and its leaps of blind faith.

This is not to say that the moralists are quite like their forbears in every respect. They (mostly) do not beat those who disagree; they they not imprison them; they do not torture them in psychiatric “hospitals”. The pressure, for now, is mostly economic and reputational. I do not mean to make light of it; I do not mean to judge anyone who thinks it is too much; I certainly do not mean to pretend that I am braver or stronger than others. When I think of those eight who went out on Red Square that day, and of the seven who did not give in to the threats and the violence ― the real violence, not just the unpleasant words ― that they were subjected to do, I do think that the demands on our strength and courage are not yet very high. But if we do not start practising being free now, we won’t be very good at it if one day we really need to.

The Rule against Violence

A timely opinion on freedom of expression by Justice Miller for the Ontario Court of Appeal

Last week, the Court of Appeal for Ontario delivered a noteworthy decision regarding the scope and limits of the constitutional protection for freedom of expression, Bracken v Town of Fort Erie, 2017 ONCA 668. The decision, written by Justice Miller for a unanimous court, breaks no new ground, but contains clear and cogent reminders of two elementary principles that, sadly, may not be self-evident in 2017: violence is not a constitutionally protected form of expression; but words, even spoken in anger, and even if those who hear them are, subjectively, feeling unsafe as a result, are not violence.

The case arose out of Mr Bracken’s solitary, but perhaps somewhat agitated, protest in the parking lot in front of the Town Hall against a decision the municipal council was about to make. Employees of the Town, one of whom had had a rather unpleasant interaction with Mr Bracken in the past, felt worried enough by what they perceived as erratic and threatening behaviour on his part that they called the police, who arrested Mr Bracken and served him with a Trespass Notice banning him from the Town Hall and two other municipal properties. The question for the courts was whether this contravened Mr Bracken’s freedom of expression. The Superior Court said “no”, on the basis that the expression in question was violent. The Court of Appeal disagreed.

* * *

After noting that the protection for freedom of expression, which Canadian courts recognized even before the entrenchment of the Canadian Charter of Rights and Freedoms is broad, Justice Miller explains why violence nevertheless falls outside the scope of this protection, although “some might find it difficult to understand the rationale for excluding violence categorically”. [30] “Violence and force”, he points out, “are predicated on the denial that persons are equal in dignity, negating the reciprocity necessary for communication and genuine dialogue”. [28] To treat prohibitions on violence as in need of justification

would be tantamount to declaring that Canadian constitutional morality is open to the proposition that an individual’s self-expression through acts of violence could, in some conceivable circumstances, take priority over the public good of protecting persons by restraining acts of violence. [30]

But how far does the exclusion of violence from the scope of the constitutional protection of freedom of expression extend? Justice Miller notes that it has been held to apply to actual physical violence and to threats of such violence, “on the basis that a person who threatens violence takes away free choice and undermines freedom of action” just as surely as one who commits violence. [31] But there was no evidence that Mr Bracken had engaged in any such behaviour. The Town employees who felt threatened by him had “observed him ‘from a safe distance'”. [37] One of them testified that she had “never had a conversation with” Mr Bracken prior to the court proceedings. [43] In short, Justice Miller concludes, “[t]he employees were indeed frightened, but the evidence does not disclose any reasonable basis for their fear.” [46]

Since Mr Bracken was not violent, his protest was protected by the Charter‘s guarantee of freedom of expression. The trespass notice banning him from the Town’s property was an infringement of his freedom, and one that cannot be justified under section 1 of the Charter. This is primarily because the Town’s action in banning Mr Bracken did not pursue a valid objective:

the factual basis on which [the Town] issued the trespass notice was largely erroneous. Mr. Bracken was not engaged in any violent activity. He was not blocking anyone. He was not preventing anyone from accessing the building. His behaviour was neither intimidating, in any relevant sense of the word, nor erratic. The Town employees, both junior and senior, were alarmed, but they were alarmed too easily. … If anyone felt intimidated by him, other than Town employees who had never before witnessed a protest and doubted that protests in front of Town Hall were lawful, it was not because he was threatening anyone. [76]

Besides, the trespass notice was much too broad; a disruptive or threatening protester might be asked to leave or, if need be, expelled, but that does not justifying banning him from public property for a whole year.

* * *

 

I’ll make a couple of observations about Justice Miller’s reasons. One is that they are at once unique, in the sense that a different judge would probably have written noticeably differently, and perfectly orthodox. I doubt many judges would have cited Joseph Raz (as Justice Miller does in describing “[t]he rule against violence [as] an exclusionary rule: it excludes by kind and not by weight”), or perhaps even Grégoire Webber’s The Negotiable Constitution: On the Limitation of Rights. Nor would many have spoken of “a set of human goods thought to be advanced by a constitutional protection of freedom of expression” [26; emphasis mine], using a phrase drawn from natural law theory. (The Supreme Court usually speaks of values or purposes instead.) But Justice Miller’s conclusions are those that the vast majority of Canadian judges would, I would like to hope, reach when presented with a similar case. (Of course, the trial judge reached the opposite conclusion, which is not altogether reassuring.) And as for the natural law allusion, though it might upset Sean Fine (who was much exercised by Justice Miller’s interest in natural law at the time of Justice Miller’s promotion to the Court of Appeal), Justice Miller shows that it too is more orthodox than Mr. Fine might realize, by referring to Justice Rand’s remark in Saumur v. City of Quebec, [1953] 2 SCR 299 that

freedom of speech, religion and the inviolability of the person are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order. (329)

(While I’m at it, can I gratuitously put in a plug for a post I wrote a earlier this year about a Québec Court of Appeal decision from the ’50s where natural law played an even more important role?)

The second observation I wanted to make here is that, although he decides the case under the Charter, the way it was argued by Mr. Bracken (who was representing himself), Justice Miller points out that administrative law reasons may well have supported an identical outcome. He notes that

a preliminary question … was never addressed: whether the Town’s expulsion of Mr. Bracken from the premises and the issuance of the trespass notice was lawful in the circumstances. … [Addressing it] may have obviated the need for a Charter analysis, and would have brought to the fore the issue of the implied limits on the common law authority of government actors to exclude persons from public property. [24]

Justice Miller adds

that where a government issues a trespass notice relying on the common law power to expel persons from property, it is exercising a power that is subject to implied limits. It cannot be issued capriciously; that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose. [75]

This matters, not just out of legal pedantry, but because one important actor that may well find itself involved in controversies about freedom of expression, protests, and violence real or imaginary might not be subject to the Charter: universities. Yet while the applicability of the Charter to them remains a murky question, it is clear that their decisions can in appropriate circumstances be subject to judicial review. Justice Miller’s reasons reinforce the point, already made by a majority of the Alberta Court of Appeal in Pridgen v University of Calgary, 2012 ABCA 139, that freedom of expression is an important consideration for such proceedings.

 * * *

This brings me to the last issue I want to address: how Justice Miller’s opinion fits into not just the legal, but the broader social context of 2017. This context is marked by the presence of two most unfortunate, and seemingly contradictory, beliefs: on the one hand, that “punching nazis”—and, inevitably, any number of other people—is permissible, and perhaps commendable; on the other, that some words—perhaps “hate speech” more or less narrowly defined, and perhaps some broader category of politically incorrect expression—are tantamount to violence and should be excluded from the scope of protection normally granted freedom of expression. (Richard Epstein provides a cogent rebuttal of that view in this Wall Street Journal article.)

Although they seem incoherent if not mutually exclusive, these twin beliefs work together to blur, indeed to erase, the line between the concepts of expression and violence. What one says, or does, is expression; what one’s opponents say, or do, is violence. And, as Lewis Carroll knew, the ability to make words mean whatever different things one chooses them to mean, neither more nor less, is a matter of “who is to be master”.

Justice Miller’s opinion resolutely pushes back against both of these pernicious ways of thinking. It explains why “punching Nazis” is never permissible—doing it means refusing to treat them as human beings (which, of course, is what Nazis themselves were notorious for). But it also insists that hurt feelings, or purely subjective claims of intimidation cannot be re-labelled as allegations of violence to shut down speech or protest, even when it takes on an unpleasant form:

Violence is not the mere absence of civility. The application judge extended the concept of violence to include actions and words associated with a traditional form of political protest, on the basis that some Town employees claimed they felt “unsafe”. This goes much too far. A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

The consequences of characterizing an act as violence or a threat of violence are extreme: it conclusively defeats the Charter claim without consideration of any other factor. Accordingly, courts must be vigilant in determining whether the evidence supports the characterization, and in not inadvertently expanding the category of what constitutes violence or threats of violence.

… A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Miller thus provides a very timely statement of the orthodox principles of freedom of expression in the public square. It would be nice if not only his fellow judges, but also others in positions of authority—in governments at every level, in universities, and elsewhere—as well as those tempted to take authority in their own hands, or fists, read his opinion and took it to heart. We would be a freer and more respectful society if they did.

H/t: Geoff Sigalet

Student Protests and Election Law

Cyberpresse (La Presse’s website) has published my op-ed (en français) on the effects a possible spring election in Québec would have on the student protests against tuition fee hikes. In a nutshell, I argue that, given their explicit opposition to the Liberal government, any expenses the protesters would engage in during an election campaign would count as third-party electoral expenses, and would therefore be illegal under Québec’s extremely restrictive electoral spending legislation, which prohibits third-party expenses in support of or in opposition to a political party or candidate. The law was intended to prevent the rich from capturing the democratic process, but operates to silence not only the rich, but also those who are not well-off.